A couple of bad ideas,

In the last week I have come across a couple of bad ideas for the reform of family law. One of the ideas has already passed into law, or at least is about to, and the other is no more than a proposal – a state in which, I would suggest, it should remain.

The first idea is the presumption of parental involvement. Included as section 11 of the Children and Families Act 2014, to be inserted in section 1 of the Children Act, the presumption has belatedly been brought into force, somewhat as an afterthought to the rest of the 2014 Act.

The presumption says that in proceedings relating to a child the court should presume, unless the contrary is shown, that involvement of each parent in the life of that child will further the child’s welfare. Well, what a novel idea. Incredible that no court has thought such a thing previously.

Except that it has. For as long as I can recall, and probably for some considerable time before that, courts have taken the view that it is best for children if both parents are involved in their lives, unless there is a good reason why this should not be the case. The presumption will not therefore make one iota of difference to the outcome of children cases.

What it will do, however, is increase the possibility of argument, particularly in these days where the majority of litigants are unrepresented. Many will erroneously think that the presumption will entitle them to an equal amount of time with the child, which it obviously does not.

In short, the presumption will make no difference, save to the amount of time and argument that goes into sorting out arrangements for children.

The other idea comes from Australia, although it is hardly original, being something that I often heard suggested over the years, particularly by fathers paying child support. The idea is that recipients of child support/maintenance should provide the payer with proof of what they spent the money on.

This, as I’ve indicated, is an old one. Those who suggest it are irate that the parents to whom they pay the support fritter it away on luxuries for themselves, rather than on essentials for the children.

Let’s think about this for a moment. Unless the money that the non-resident parent (‘NRP’) pays is kept separate from the other income of the parent with care (‘PWC’), how is the PWC going to know what it was spent on? Once the money gets mixed up with other income, who can say what money was used to pay for what?

But keeping the money separate does not, of course, solve the issue. All the PWC has to do is use that separate money to pay for things for the children, releasing their other income to pay for luxuries for themselves.

OK, I suppose there could be some way of working out the total amount of money that the children cost to keep and making sure that the NRP pays an appropriate proportion – but that is what the calculation of child support/maintenance (whether by formula or court) attempts to do anyway.

Then there is the policing issue. How on Earth is it going to be checked? Imagine the cost involved and the amount of argument it is likely to cause.

No, definitely a bad idea whose time should never come.

Photo by César Astudillo via Flickr

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

16 comments

annoymous - October 20, 2014 at 3:38pm

With regards child support payments why not have a voucher based system , where vouchers can only be exchanged for food, childrens clothing, toys, childcare etc similar to the goverment old style grants for childrens clothing.

This would stop the man’s money being wasted on holidays, make up , clothes , cocktails with the girls etc

nordic - October 21, 2014 at 12:00pm

John, this is a first. I agree with you that any attempt to formalise usage (as opposed to the quantum) of child payments is doomed to fail. I also agree that the watering down (showering, in fact) of the presumption renders it at best meaningless, but not because this was not a good idea to start with. A properly drafted presumption could have provided some desperately needed guidance to the courts as to how they are to interpret the principle of the child’s well-being as being the paramount consideration. Any honest comparison of residency and contact data with, for example, the Nordics, can only lead to the conclusion that something is really wrong in this jurisdiction. There is an urgent need to put some constraints on how the courts apply the paramount principle which, if left on its own, is wide open to misinterpretation by parents and courts alike.
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What the presumption should have established was the child’s right to direct contact with both parents post divorce (subject, of course, to this not endangering the child). Not only does the presumption in its final form completely fail to grant any rights to the child, it maintains the illusion that indirect contact somehow can be a substitute for direct. In doing so, it is a regressive and harmful step backwards. To see how this should have been done, refer for example to both the Norwegian and Danish Child laws, both of which grant the child (not the parents) the right to direct contact and from an early age provide the child powers to force the issue.
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While everybody talks incessantly about children in this jurisdiction, the watered down presumption is a perfect illustration that this is just that – talk.

Tony - October 21, 2014 at 12:36pm

John, when I read comment like this about a presumption written in law that states that effectively in children’s act cases parents should be treated equally unless there is a good reason to the contrary, the commentator, usually a member of the legal profession or a Judge, trots out their assumption that this will lead immediately to a misinterpretation by which parents (or rather by inferrence a subset of parents, usually”Fathers” )will assume that this indicates a 50/50 share of the child’s time. This assumption is pretty insulting to be straight with you we Fathers do not become immediately stupid upon divorce or separation, we do get the fact that this does not legislate for 50/50 care Yes some “father’s groups ” would like to see 50/50 as a presumed starting point in legislation and they do have a point but it is so easy to put the emphasis on “they want 50/50” rather than the actual point, which is “as a starting point”. There are a huge number of reasons why 50/50 shared care is not feasible for most separated families although for some it works brilliantly, but if mediation, arbitration and the like are to be successful then parties need to be on a level playing field when working out what is feasible and sensible for the child/children. At the moment this is one of the biggest problems with the take up for mediation as whoever the child is living with when mediation should begin has a massive advantage over the other. This is further compounded by using trite phraseology like “Parent with care” to describe a resident parent as to most non resident parents this infers that they are “the parent who doesn’t care” (I am aware that the intention of the former phrase is to indicate the parent with whom the child/children spend essentially their Mondays to Fridays with) but the latter insinuation is ever present. The legal presumption should also serve as a reminder to a great many judges (amongst others) that they are duty bound to see and treat both parties equally, lawyers and Judges often sneer at the insinuation that both parties are not treated equally in court. The sad truth is that they most definitely are not, and it is for the same reason that mediation cannot work i.e. one party goes into the process holding all of the cards, as it were, because the child at that time is residing with them and they have no reason to negotiate themselves into a lesser position.
Yes I am a Dad, yes I am divorced but ironically I am also what you describe as a PWC.
I believe you are wholly wrong to object to the legislative presumption because as it stands now “In the best interest of the child ” may as well be written in Klingon as it means everything and nothing at the same time time because it has no definition in law in the same way as the word “reasonable” is used in other areas of the law to create a deliberate grey area where due to it’s non-specific nature encourages all kinds of interpretative argument and this presumption is the first, albeit miniscule, step towards correcting that balance.

Stitchedup - October 22, 2014 at 2:58pm

50:50 should be the starting point, the bill is a farce if it doesn’t enforce that. For some people it will work, for others not…. but it should be the starting point. If we do not have a 50:50 starting point then we do not have a level playing field to start with. Why is it so difficult????

Yvie - November 1, 2014 at 12:03pm

I fully agree that 50/50 should be the starting point and having established this in law, it creates a level playing field. It is then up to the parents to come to an arrangement which suits both them and the children. Not difficult once shared care has been made law. It works in other countries very well.

In my son’s case, he doesn’t have 50/50, but he does have a shared care order for 2.5 days week 1 and 3.5 days week 2. By nature of the shared care order, it means that the children are guaranteed a home with both parents. HE is fully committed to offering his boys a home and has everything in place that the children will need, all clothing, shoes, coats, underwear et al, and also the technical things that boys love to have around them, X-boxes, games and so on. When children have to move between houses with a carrier bag full of clothes, it cannot really be called a home.

However in such circumstances a single father is not entitled to any State help in providing for his children. For fathers on low pay this can be extremely challenging – and this is before CSA maintenance is taken into account.

I am of the opinion that once a shared residence order is granted , child credits and child benefit should be apportioned to each parent accordingly, depending on the amount of shared care each does.. If both do an equal job in caring for their children then both should be treated equally by the benefits system.

Stitchedup - October 23, 2014 at 11:33am

I’ll give you an example of how a defence of “reasonable excuse” was handled in my case.

The judge threw it out at the outset, adjourned the court and told my solicitor to have a word with me with regard to changing my plea. His reason…… I had admitted talking to my ex. So how does one offer a defence of reasonable excuse whilst at the same time deny an allegation. If I had denied talking to my ex, why would I offer a defence of reasonable excuse for something I was claiming I hadn’t done??? The mind boggles!

Jyezi - October 30, 2014 at 6:06pm

What I find most confusing about family court cases is this…
1. It all depends on the judge’s mood on the day and also each judge has a different view on the
matters.
Now in Criminal Law it’s all based on Facts and Evidence…Family Law is all based on personal opinions, presumptions, attitudes, hearsay etc etc…
To me this is the grey area in the whole process… Where is the Evidence and Facts?
Cafcass are the largest instigators in this from my personal experience… You are invited to a meeting… ( which in their report has changed to an interview) You take along all the facts and evidence to show and discuss… ” we don’t have the time to view that, we just want to hear what you have to say” ?
( hearsay ) due to time availability… Descriptive reporting, rather than analytical and factual… But then the reporter go’s on to write at the bottom of their report… ” I have applied the welfare checklist analysis to the facts and evidence of the case throughout” …. Leaving out the Actual Facts of what could be deemed a Child Welfare Concern… It’s with little wonder we hear of so many child cases on the news and in the papers with attitudes such as that….. I had conversations and meetings with 3 social workers… X2 from Cafcass and x1 from social services.. And between them they had less than 3 yrs experience..one was newly qualified going through a PQ award, x1 had been qualified for 3 months and the court reporter Cafcass only 18 months… The mind boggles and these people are a great influence on the Court Procedures? Social services refused to look at the evidence and sent it back with the excuse” it’s 3rd party documents” and Cafcass did not have the time? It’s about the Welfare of the Children for gods sake… Not because of protocol.. FACTS are FACTS..EVIDENCE is EVIDENCE.. If it proves beyond doubt that an issue of safety is a serious concern and is FACTUAL what does it matter whether it’s 3rd party or not? Look at IT, read IT and make an assessment…at the very least.
It’s shocking these people and the authorities for which they are employed to this day adopt the draconian Willfull Blinded- ness that they do…in light of all the issues we hear on T. V .. Baby P etc…. ” We have learned from our mistakes, and people have been suspended etc etc..” And within a few months… It all starts again… It’s Complacency, a lack of vigilance, time availability and a lack of due diligence that is the problem… The System is fine… If somewhat misleading and Grey in Legislation…But It’s a System…The problem is as I see it… Is the People Within It that makes the system look bad…Attitudes and Values and integrity.

Stitchedup - October 31, 2014 at 3:25pm

“Now in Criminal Law it’s all based on Facts and Evidence”
Wrong on several counts….
In criminal law there’s meant to be a presumption of innocence and the burden of proof is supposed to be on the prosecution… the basic rational behind this is that it is difficult for the accused to prove a negative. Where things go wrong is when, due to political interference in the justice system, there’s a presumption of guilt. This is the case for domestic abuse allegations where there’s rarely any hard evidence and I’ve been told the same applies for sexual offences where it is one word against another and, again so I’ve been told, racial cases where it is one word against another. Many of these types of cases are heard in the magistrate’s courts; you might have a better chance in a crown court with a commonsensical Jury but the government/judiciary have limited the access to crown courts.
The Police, Magistrates and District Judges are subject to political conditioning and are indoctrinated to take positive action on political hot buttons such as those mentioned above. The conviction rates in magistrates courts are very high, 80% or 90% I believe, so in the majority of cases you’re really only there for sentencing whether you plead guilty or not. Magistrates and District Judges work on the principle that the Police don’t lie or confer when writing statements, they also work on the principle that a woman only makes a domestic abuse complaint if she’s already suffered something like 17 previous incidents of domestic abuse/violence?!!?
Non-molestation orders are issued like sweets in the civil courts, so there’s also a major problem of people being convicted for doing something that in normal circumstances would not be considered criminal behaviour e.g. talking. This is the end result of making a breach of a non-mol a criminal offence rather than a civil offence, even though the non-mol was secured in the civil courts with no evidence of abuse required. In my case the district judge wouldn’t even consider a not guilty plea based on a defence of reasonable excuse as I had admitted speaking to my ex. However, It’s hard to see how I could put forward a defence of reasonable excuse without admitting speaking to my ex !!??!!
Our justice system is not what many people think it is, you need to experience it to understand how dangerously fallible it actually is.

Jyezi - October 30, 2014 at 8:44pm

My Mini Thesis on The Family Law and Courts.. ” The Adversity”
My Philosophy and Social Psychological understanding….
OF:
The Intertwined Laws of how Family Courts operate ( in my opinion based on research )
Being:
Criminal Justice, Children’s Act ( Family Law) Maritime Law and Common Law.
In relation to: Crime, Children’s best interests, Ownership, and Property Rights.

Criminal: ( Child’s best interests) … Self explanatory really…Are there any risks to the child? Safe guarding issues? Are there any Warnings, Charges, reprimands, convictions or Cautions relating to the care or welfare of a child? Assessment outcome to determine….Risk or Not
If not…then are there any concerns other than that above that don’t fall into this category?
Being:
Children’s Act 1989 (Children’s Best Interests)…..
Alcohol or Substance Misuse both past or present, Mental health concerns, past present or likely to re- emerge…Housing, emotional and psychological care of the child / children, Behaviors: (Hostile aggressive parenting and parental alienation) parenting, income etc….
Assessment outcome to determine…Risk or Not , help available, treatment and or care, change of living arrangements for child, other options….family support etc…

Maritime Law: Ownership….
Emphasis on ( ship ) in the wording….
Family Courts operate under Maritime Laws…incorporating the Children’s Act…
Historically speaking and still being used today…
The Mother is the Ship…hence why in the courts view the children belong or should try and promote the best they can that the children ( cargo ) stay with their mother ( ship ) The Children are the Cargo…The Father is the Deck hand, and the Judge is the Admiral over seeing the safety concerns ( if any any ) and making judgements therein…
In my view, this is why Judges are deemed biased against fathers… As the Mother ( ship ) has overall rights for she gave birth to the children ( cargo ) and therefore this incorporates the monetary system of exchange…the bargaining powers… As the Mother is a valuable asset to the economy..their are financial privileges attached and government incentives too… Housing etc… Incorporating (The Bill of Exchange)
The Children ( cargo ) become bargaining power… Hence why Fathers ( deck hands ) must have Mothers permission to sign joint ownership of the children ( cargo ) on the Birth Certificate… and in doing so, the Children ( cargo ) now become legal fictional property of the state ( government ) have now gained joint financial vested interest in the cargo….
This is why all ships upon construction and embark for the first time.. Have champagne bottles broken on them at the Birth of the ship… Hence the term.. Wetting the babies head and raising a toast when children are born….
The problems arise…should the Mother ( ship ) not wish to assign cargo property rights to the father via birth certificate…or even if they do can “rock the boat” pardon the pun… And create friction and set set sail with the children as she wishes..abroad if she feels like it for up to 1 month.. ( Admiralty laws) without notifying anyone. But she cannot change the cargo’s name…if the deckhand ( father) has a joint vested interest in the cargo and has a certificate of joint ownership ( birth certificate with his name on). (Note the term “ship” again) without his permission…

This is why ALL SHIPS and BOATS of any description are given Female Names… Some being anagrams of a particular female name…

The Courts problems arise when and if the Father ( deckhand ) and Mother ( ship ) part their ways for one reason or another… the Deckhand still wishes or not as some cases may be.. Wish to continue to have a joint interest in the cargo… To check upon it by way of visitation…after all that is the cargo’s right and the deckhands responsibility to maintain it… A deck hands rights do not exist…unless the ship is willing to accept and not to keep rocking the boat… The deckhand has certain rights in relation to his joint cargo asset in relation to where the cargo is…is the cargo being cared for, is it safe, education and religion and if the cargo needs medical treatment he has a right to know and if serious has a right to be informed and grant or not emergency treatment.. Basically speaking, the deckhand ( father ) has basic minimal rights… the Children ( cargo ) Have All the Rights and is in their interests to be own by 2 careful and caring cargo owners…
But what happens when the mere deckhand ( father ) has a concern about the ship ( mother ) for one reason or another he may have a safety concern..or the ship is not sailing as it should… So in effect he jumps ship and alerts the Admiral ( District Judge) to his fears…
But the District Judge has taken his Oath under Common Law Jurisdiction..( Peace keeper and harmonizer) He can do very little unless it can be proven beyond doubt that the ship is unsteady or dangerous or wishes to set sail with the cargo to far away lands for ever…is the cargo is in harms way the Admiral Asks…
We better call the ship in and discuss this cargo issue… But you’ll have to pay a fee to bring this to my attention…The deckhand pays his fee to the Admiral…
The ship and the deckhand meet in the Admirals office… ( Court )
The Deckhand states : ” Sir I have jumped ship due to A B and C and we can’t agree about the Cargo…
” I no longer wish to sail on such a ship, it’s unsteady, wishes to set its own course and I as a mere deckhand have had no other option to seek your assistance Sir…
Admiral: It is not within my position to Salvage your ship Young man, nor is it in my remit to decide for you, you’ll have to discuss your cargo arrangement between yourselves I’m afraid and come back in 3 months time and I’ll stamp your agreement with my seal of approval on a document under common law, and just to give you a false sense of security young man I will also attach a Criminal Act Warning should the Ship fail to comply..
3 months pass… The deckhand has not seen his cargo… And writes back to the Admiral to enforce the admirals Common Law agreement…
The ship fails to attend… And another 3 months pass…the ship is sick…another 6 weeks pass…the Admiral calls in sick…another 2 months pass…
Finally… the ship, the Admiral and the deckhand are all convened in the office…
The ship states.. The deckhand is not a very good deckhand Sir, he has failed in his duty to me…The deckhand states.. I have been a good and responsible cargo handler, caring and maintains our cargo for years…it was your rocky and oppressive behavior of the deckhand that caused me to jump ship, but I wish to maintain my cargo and have a vested financial interest in our Cargo as I have always done…
The Admiral contemplates the options available to him…
I can’t send the ship to jail.. For where will the cargo go? the cargo should always stay with the ship…
The ship is still stating to the Admiral that the deckhand is a poor maintainer of his cargo and has not full filled his duty to the ship…
The admiral asks for backup… And calls in the Engineers.. ( Cafcass ) and the ship laughs…
2 months pass… Still no sight of the deckhands cargo…
The engineers call the deckhand… Please come in for a meeting…
The deckhand meets and brings with him the photo’s of how he has cared for his cargo, all the receipts for his maintenance, documented history of each time he has spent caring for his cargo whilst on board the ship…
The engineer ( another ship ) does not have time to trawl through this… For they only have 1 hour… The Admiral has asked for a report and time is of the essence… Thankyou for your comments deckhand, I’ll now go and see the ship….
The ship tells the engineer how bad the deckhand has been on board the ship and that the ship tossed him overboard as he was not spending too much attention to the ship….
Engineer writes her report and passes it to the Admiral 4 hours before the meeting is due… the poor deckhand has not seen the report or had the opportunity to review and complain…
The Admiral reads that the Engineer ( another ship ) states that the cargo’s ship continues to hold the deckhand responsible… But states that the cargo miss the deckhand as he is a good cargo maintainer..The Admiral asks the ship if she has made any plan for the deckhand to see his cargo.. ” NO” replies the ship… the Admiral asks the deckhand if he has made any plans… “YES”… Ahhh ok.. I can see my cargo at the contact dock who have assured me 3 hrs per week.. great says the Admiral.. That’s what will be for now until the ship has a change of heart…
10 months pass.. The deckhand continues to see his cargo at the contact dock, is always early and always makes sure his cargo is well looked after during this period… the ship has arrived late on many occasions, and sometimes not at all…
The engineers begin to suspect foul play of the ship…and has upon 2 occasions not attended the Admirals office when ordered to do so…
The Admiral asks the deckhand to prepare his evidence… And send it to the Admiral… The deckhand could not compline his bundle fast enough… And sent it off to the Admirals office without delay…
The Admirals not going to be happy with the ship..nor will he be happy with the engineer…
For the deckhand has been meticulous in his cargo’s needs and care… And finally all his hard work over the years is about to be recognized…..for all along he knew how happy his cargo was to have him as their carer…The ship can continue to set its own course…and engineers can keep patching up the ship… But finally the cargo will be in safe hands… No More Sailing…
Ahmen.

JamesB - November 2, 2014 at 8:18pm

I completely disagree with John on both of his points and take the opposite position after many years of experience and thought and care for children and parents and I also think he is not considering what is in the children’s and family’s best interests in his conclusions, more lawyers best interests. I won’t waste too much breath on him, but I will give an example of a non resident parent paying a lot of child support having the parent with care justify where the money goes is fair enough, if they cannot (which seems to be what John fears) then it undermines the law which is what he is concerned with. Well, if the emporer aint got any clothes on then pretending he does aint gonna cut it. What’s next arguing MPs don’t have to detail their expenses. Strewth. I left your site to get away from your rubbish and came here thinking it was more sensible and you follow me with more of your rubbish. On the contact thing increasing the presence of both parents is a good thing. I have fought the system like buggery to get involved in my children’s lives and all it has done has made them grow up better than they would have done and undermine the crazy mother and legal system, which is again where he is coming from trying to defend the indefensible (yes I listen to radio five live sometimes) exclusion of non resident parents with bad law for no good apparent reason then to perhaps promote the divorce industry.

JamesB - November 2, 2014 at 8:28pm

I could go on but wont and am indeed annoyed with myself for reacting anyway. I just fear, like with the Saville enquiry establishment making decisions without decent consultation as politicians often do and wanted to make the point as that is what happened with the csa, politicians listening to shouting mothers and not doing proper thinking and due diligence. I was worried and am worried they listen to lawyers and likes of John without listening to others. I should stop worrying as it can make me ill, and stop reading this sort of thing as I do believe, that people are inherently good and the sort of bad John promotes will not win.

I say I made the pwc and law looked bad as I was denied contact for being bad yet the more I saw and see the children the more ridiculous that looks. I rarely see them but its not good that as it just makes resentment from me and the children against the pwc and law and society and that is why his views will not remain prevalent, indeed they are not currently anywhere but in the establishment and that is changing (the establishment) and will change to a more representative establishment who do not believe such nonsense as John puts forward. Yes, he has upset me again, annoyed with myself for letting him get to me, I will leave it there. I have read things he has said for years and I still don’t know if he even has children I really don’t think he is qualified to express any opinion which means I am still annoyed for being wound up by him again. Perhaps he is just a wind up merchant. I think he is and I should leave it there due to that.

JamesB - November 2, 2014 at 8:33pm

Typo before. Corrected here. I have read things he has said for years and I still don’t know if he even has children I really don’t think he is qualified to express any opinion on the subjects on this site which means I am still annoyed for being wound up by him again. Perhaps he is just a wind up merchant. I think he is and I should leave it there due to that.

JamesB - November 2, 2014 at 8:51pm

With all of your posts I have yet to find one person who agrees with your views (which abhorrently encourage the alienating of the nrp and excluding of them from society as you do) John. I wish you well as it does make me feel good in that I feel there is a lack of strength and good foundations to your views and that makes me feel better about viewing the law on this matter as bad. I would be really upset if I read your posts and they made me think and question my views (which has been known to happen, but not by you). You have no reason I can think of other than to try and wind people up and support the discredited family law which is not supporting it as it obviously needs reform and you should be proposing other good change rather than arguing against others who propose other good changes. I support both the items you are against in your writing here. I have yet to hear your views on pre-nups perhaps if you were to write that you are for them, then we could agree on something as I am in favour of them. Probably not though as to do so would be contrary to existing bad family law which you try to support. I have not heard any convincing arguments supporting family law as it stands and am surprised people still try when it is so discredited and in need of change. I suppose I do give you credit for trying and I suppose someone has to play devil’s advocate to get the views out and test the views and thoughts and thinking that people have, on this subject, can’t think of any other value though as both things you quote are obviously fine and surprised you can think them wrong as they do no harm and indeed do good.

JamesB - November 2, 2014 at 8:52pm

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